Waiver of Liability Form

[efs4ever 3]

I may have posted this some time in the past, but I'm not sure. This is a Texas Supreme Court case about liability waivers where the waiver in question was rejected. The requirements of a valid waiver, according the the Texas Supremes, are set forth.

I'm curious to hear about cases in other states where a DZ might have defended against a lawsuit and either won or lost on the waiver. I have, in the past, put a waiver that withstands the TX test under the nose of plaintiff's counsel during an ongoing case and it made them go away.

Russell M. Webb D 7014
Attorney at Law
713 385 5676
https://www.tdcparole.com

[Kennedy 0]

Interesting that they say the clause fails to be conspicuous when next to the required signature is a line in all caps that says "I have read this release etc etc etc."

If he couldn't read it, why did he sign it? Can't miss that that is the only information of substance on the entire form. [according to the justices]

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1*

[airtwardo 6]

Some time back, at a California DZ...

The waiver procedure included the participant
actually reading the waiver on video,
also stating that they were of sound mind and
not under the influence of anything.
The person was then taped holding their legal
identification followed by them signing on camera.

I don't know the facts, but was told just showing
a copy of the video and waiver halted
proposed litigation in their tracks...
much like you experienced.

Were the instances you refer to regarding parachute
operations, or waivers of another sort?

~ If you choke a Smurf, what color does it turn? ~

[mr2mk1g 10]

The case you’ve posted is about conspicuous notice. In English Law any particularly onerous clauses in a contract must be very conspicuous in order for them to be binding. (this is to stop people slipping some real nasty clause into the middle of a 20 page document or hiding something in small print). I.e. if it greatly affects your rights it needs to be brought to your attention in a most profound way. The more it affects you, the more they need to do to bring it to your attention.

In the leading case on the subject (again English law) the Judge (the highly respected Lord Justice Denning MR) stated something along the lines that the text would need to be “printed in the red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient”.

Now that’s English law – not American so not at all applicable. I post it simply for illustrative purposes, as there is almost certainly a comparable judgement in your jurisdiction (you’ll have to ask Lawrocket for that though).

I point this out simply to show that the case you posted in which a waiver is defeated can easily be overcome by simply making the waiver very very conspicuous. Last time I signed a US waiver I had to watch a video, read a 20 page doc, initial every paragraph, sign the bottom, then state to a video camera that I had read the document and understood it. I think there’s a good chance that would count as conspicuous notice?

I’m not saying that waivers work or not – I do not know as I have little knowledge of the finer points of US law. All I’m saying is that the case you’ve posted is easy to distinguish (ie it doesn’t apply) in most skydiving waiver cases. Perhaps there is another way to defeat them though.

(For example, they don’t work in England at all).

[lawrocket 3]

Actually, in many states this same requirement is found. Controversial clauses must stand out to the ordinary person, or may be deemed invalid.

Note in the Hulsey v. Elsinore case, one of the things the court talked about was how the writing on the waiver did not contain fine print.

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